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D.C. Appeals Court Points the Way to the Defeat of Obamacare's Individual Mandate

Brett Kavanaugh swearing in by Justice Anthony Kennedy, along with President George W. Bush and Ashley Kavanaugh. (Photo credit: Wikipedia)

With Obamacare headed to the Supreme Court, it may seem pointless to reflect on some of the other challenges to the law that are winding their way up the courts. But Randy Barnett, the Georgetown law professor who developed the intellectual framework for challenges to the individual mandate, points us to some interesting developments in the D.C. appeals court that are worth watching.

The U.S. Court of Appeals for the District of Columbia Circuit is widely thought of as the most important, and most prestigious, of the thirteen federal appeals courts. It’s easy to understand why, given the D.C. Circuit’s role in examining federal agencies and laws. The D.C. bench is one of the most common sources of nominees to the Supreme Court, including current Chief Justice John Roberts.

The case before the D.C. Circuit is Seven-Sky v. Holder, and oral argument in that case was held on September 23. Barnett, writing at the Volokh Conspiracy, notes that “the hearing was very interesting if for no other reason than the intellectual fire power of the panel: Judges Harry Edwards, Laurence Silberman (who previously wrote opinions holding that the independent counsel law and the DC gun ban were unconstitutional), and Brett Kavanaugh.”

According to Barnett, the Administration had a tough time explaining what powers Congress doesn’t have if the individual mandate is upheld:

The low point for the government was when Judges Kavanaugh and Silberman pressed counsel for about 10 minutes for a single example of any economic mandate that would be unconstitutional under the government’s theory of constitutionality. To their evident frustration, she refused to provide any such example.

Judge Brett Kavanaugh, a George W. Bush appointment to the D.C. Circuit, “laid out an explicit four-point analysis that summarized several lines of questions that might well provide the structure for a majority opinion in the case.” The four points are: (1) Congress has never before “claimed the attractive power” to force citizens to buy private products; (2) the argument that “health care is different” is constitutionally irrelevant; (3) Congress could have achieved similar results by using its powers of taxation; (4) given point 3, it’s not clear why Congress needs to expand its powers by claiming the right to impose mandates.

1. First, although judges should approach all acts of Congress with a presumption of constitutionality, given that in 220 years, the Congress has never claimed the attractive power to mandate that private citizens send their money directly to private companies, judges should at least be “hesitant” before endorsing such a power. [Elsewhere in the argument Judge Kavanaugh noted that this principle was identified in Printz when Justice Scalia was evaluating the constitutionality of the power to commandeer state governments as a Necessary and Proper means of executing the Commerce power: “[I]f, as petitioners contend, earlier Congresses avoided use of this highly attractive power,” wrote Justice Scalia, “we would have reason to believe that the power was thought not to exist.” Ultimately, Justice Scalia characterized a state commandeering power as “improper.”]

2. Second, this claim of power is “uncabined.” [As evidenced by the governments adamant refusal in oral argument to identify any economic mandate that would be outside the power of Congress to enact. A fact-based evaluation that “health care is different” does not provide a judicially administrable limit. This was a major concern expressed by Judges Dubina and Hull in their jointly-authored Eleventh Circuit opinion.]

3. Third, Congress could have accomplished all or most of what it wanted to accomplish simply by exercising its tax power but it chose not to. [Although earlier in the argument Judge Kavanaugh pressed counsel for Seven-Sky on the tax power theory, this comment seemed to signal that he was not persuaded by the government’s tax power theory, which remains the darling of the law professoriate. I could be wrong about this signal, but Judge Kavanaugh did seemed to say that Congress chose not to use its tax power.]

4. Therefore, why then open a new chapter of Congressional power by extending the commerce power in so dangerous a way? Here Judge Kavanaugh made what was, for me at least, a new argument against sustaining this power: Unlike the tax power that is limited to monetary exactions (except for penalties imposed for failure to make payments), sustaining economic mandates under the commerce power would empower Congress to impose any penalty up to and including prison terms for violating its economic mandates. Judge Kavanaugh seem sincerely troubled by the dangerous nature of this new (i.e. unprecedented) expansion of federal power from what has previously existed until now. [True, the ACA contains only tepid penalties, but if the Commerce Clause rationale is successful, the sky is the limit.]

These arguments won’t come as any surprise to anyone who has followed the various court challenges. But the persuasive intellectual framework therein has a political value, in that it allows centrists like Anthony Kennedy and advocates of “judicial modesty” like Scalia, Roberts, and Thomas to overturn the mandate without feeling like right-wing ideologues. It’s these reasons that make me think that the Supremes are likely to overturn the individual mandate (and possibly the pre-existing conditions provisions), while keeping the rest of the law intact.

Here’s some bonus video of Randy Barnett at the Senate Judiciary Committee’s February hearing on the topic, which also featured Harvard Law professor Charles Fried arguing that a broccoli mandate was Constitutionally sound:

(a) The government still has not managed to come up with an example of something it cannot do under its reading of the Commerce Clause. This is shocking. Solicitor General Verrilli (who did not argue here), a word of unsolicited advice before Justice Scalia asks you the same question: come up with a couple of outlandish things and move on. Unless, you know, you think the government really can do anything it wants if a congressional majority exists for it.

(b) Judge Bret Kavanaugh, Bush II appointee and rising star in the conservative judicial establishment, had some serious concerns regarding the Anti-Injunction Act (the jurisdictional issue on which the Fourth Circuit based its decision to dismiss the Liberty University case). Beth Brinkmann, arguing for the government and after floundering on the Commerce Clause (see above), seemed to have done a great job in putting Kavanaugh’s mind at ease — or at least getting him over the jurisdictional hump.

(c) Judge Laurence Silberman, Reagan appointee and author of many significant opinions over the years, has a really wide interpretation of government power under Wickard v. Filburn, the 1942 wheat-farming case. I’m not sure that puts his vote in danger — he was also the one who most went after the government — but it does raise an eyebrow.

(d) Overall, I cautiously predict a 2-1 ruling in favor of the plaintiffs, but we won’t know till later this fall.

UPDATE 2: The D.C. Circuit voted to uphold the mandate. My thoughts on the ruling are here and here.

UPDATE 3: Sahil Kapur of Talking Points Memo uses my piece to reason that “conservatives are getting punk’d” in being optimistic about Kennedy’s questions at SCOTUS oral argument. But he misunderstands Randy Barnett, who actually said the opposite of what Kapur infers. “Of greater concern is Judge Silberman’s interpretation of Wickard,” Barnett says in the original post. Barnett expresses his concerns about Silberman’s questioning in a followup post. By contrast, Barnett has expressed cautious optimism regarding Kennedy’s performance.

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